
"l ^/ 



Class. 
Book 



COFffilGHT DEPOSm 



The Constitution of the United States. 



THREE LECTURES 



DELIVEEED BEFORE 



Ti mmm LAW SCHOOL 



OF WASHIXaXOX, D. C, 



Mr. Associate Justice Miller, iWv<. 

<^yOF C; Of the Supreme Court. 
LAW 
\ DEPARTME.-; 

^/ 



i'EBRUARY 6, 12, AND 19, 1880. 



WASniXGTOX, D. C. : 

W. H. & O. H. MOKKISOX, 

La%v Booksellers and Publishers. 
1880. 



:fK 









Entered according to Act of Congress, in tlie year 1880, by 

SA3IUEL F. Miller, 

In the Office of the Librarian of Congress, at Washington, D. C. 



rriEES OF TnoMAs McGiLL & Co., 
Law Printers, 

wa8hisgt0n, d. ( 



First Lecture. 



It gives me great pleasure, gentlemen, to spend 
three evenings of the little recess, or holiday, that 
our court takes from its labors, in communing 
with gentlemen who are in pursuit of the law. 
As I had occasion to say to the Bar Association 
of the city of New York, last fall was a year, 
when I delivered the address before it, " We are 
all lawyers, and judges do not cease to be law- 
yers by becoming judges; in fact, they would be 
very poor judges if they were not lawyers." 

The subject with which I propose to occupy 
your attention in the three discourses that I shall 
have the pleasure of delivering before you, is 
" The Constitution of the United Stales,'''' I have 
adopted that subject not because there is anything 
in it new or fresh to you, or to any other well- 
read class of gentlemen, but because, owing to 
my situation on the bench of the Supreme Court 
of the United States, I have been compelled to 
give it very close attention, and to look at it in 
aspects which required the best powers that I had 
to give. 



4 LECTURES ON THE CONSTITUTION 

It is a veiy remarkable instrument in many 
particulars. I think I may venture to say that 
no more important written instrument exists to- 
day in the history of the world, as aiFecting the 
happiness of the world, outside of tPiose which are 
of a religious character — perhaps I might say out- 
side of those of a divine origin. It is the subject 
of perpetual exegesis by all the lawyers of the 
countrj^ and by all the courts of this country, — 
an immense number of lawyers and courts rep- 
resenting a very large population and very ex- 
tensive business, all of which are more or less 
affected by this instrument which we call the 
Constitution of the United States. 

"Written Constitutions are not very numer- 
ous. Still, there have been societies of men, 
and States and colonies, which have been gov- 
erned, in their organic policy, by instruments 
called charters, granted by kings, or monarchs, 
or rulers — by whatever style they may have 
been called — to their subjects, and designed 
to confer rights and regulate the relations of 
the subjects to the monarch. This instrument, 
however, is one which comes from a different 
source. It is one in which the people themselves 
have undertaken to frame an organic law gov- 
erning the relations of the whole people of the 



OF THE UNITED STATES. 5 

United States, to a veiT large extent, to the Gov- 
ernment of the United States, and the relations 
of the States to that government, and to pre- 
scribe, in very many cases, the limits and rules 
of private and individual rights. Such an in- 
strument, framed and put into language, judi- 
ciously operative upon the affairs which it is 
intended to govern, is a rare thing in the history 
of the world ; and I think I may, with safety, say 
that no instrument of such a character, so w^ell 
adapted to the purposes which it is intended to 
subserve, and so successful for those purposes, 
has ever been framed by the ingenuity of man. 
It is therefore a subject unique in that respect, 
to which I invite your attention. 

This, however, like all other instruments, when 
it becomes the subject of comment and of con- 
struction, must necessarily be looked at in the 
light of its origin, the purposes which it was in- 
tended to subserve, and the evils which it w^as 
intended to remedy. 

It would be almost enough to occupy an entire 
course of lectures for any one to attempt to give 
you a history of the Constitution of the United 
States. 

Probably the best condensed history of it will 
be found in Mr. Justice Story's preliminary 



6 LECTURES ON THE CONSTITUTION 

and iutroductory chapters to his Commentaries 
on the Constitution of the United States. I 
will, however, state to jon^ in a very few words, 
that this Constitution arose out of the condition 
in which the people of the United States found 
themselves at the close of the Eevolutionary 
War. Having established their independence 
of the Government of Great Britain, and been 
recognized as one of the family of nations, they 
soon found that the compact under which they 
had achieved successfully that independence, 
namely, the Articles of Confederation, was ut- 
terly inefficient and incompetent to answer the 
purpose of binding them together and conduct- 
ing the new nation on its pathway to future 
usefulness. Its defects were obvious, and some 
of them you have no doubt heard before. It 
was found that the Colonies, as they had been 
previously called, had never really been inde- 
pendent States or Nations. They had been sub- 
jects of Great Britain, controlled by charters of 
the King of England, submitting very largely to 
the legislation of the Imperial Parliament, until 
certain questions connected with taxation caused 
a resistance, not to the King, but to the laws of 
Parliament. 

In the effort at resistance, thev had united to- 



or THE UNITED STATES. Y 

gether in a body to make that resistance suc- 
cessful; so that being a government or a nation 
when they were free, each individual colony had 
never been at any time a separate and inde- 
pendent State, and yet neither of them recog- 
nized any supremacy in any other State; and 
the question was, what amount of supremacy 
should they grant or yield to the common gov- 
ernment which they were about to form. It was 
found that that which had carried them through 
the war in the paroxysm of patriotism necessary 
for self-defense, was incapable for canying on 
a successful government after that impulse was 
gone. 

One of the evils which was most pressing, to be 
remedied by this new organization or reorgan- 
ization of the government, was that no taxes 
could be successfully collected for the support 
of the general government. The only reliance 
during the Eevolutionary AVar, and from 1776 up 
to 1789, when this government was organized, 
was a call, or request, by the Federal author- 
ity upon the States for their proportion of 
the taxes necessary to support the government. 
Even during the pendency of the war, this was 
responded to very feebly and very unequally; 
and hence the war of the Revolution was fou«:ht 



8 LECTURES ON THE CONSTITUTION 

on credit, and an immense debt remained to 
be paid at its close. There was no means of 
relief in taxing the people by the parent gov- 
ernment. 

Another evil was, that, coming to be recog- 
nized as one of the nations of the earth, this so- 
called central or general government had no 
sufficient powers, conceded to it by the States, 
to conduct its affairs with foreign governments. 
We had no capacity to make treaties except 
on a limited -class of subjects. We had no 
means to raise armies and navies, or of pay- 
ing the government debt; and how far each 
State could itself negotiate with other nations, 
and how soon we should be subjected, as the 
Grecian republics were in the days of the Olym- 
pic councils, to the influence of other nations 
who might approach any one of the States 
to withdraw it from the Union, nobody could 
telL 

But perhaps of all the causes, — like some little 
fretful thing that seems unimportant, but which 
perpetually annoys you, — of all the causes which 
contributed most largely to the formation of the 
new Constitution, was the condition of trade and 
commerce abroad, and trade and commerce be- 
tween the States. The power of taxing all the 



OF THE UNITED STATES. 9 

goods that passed through eacli State and every 
port remained with the States. The little State 
of Ehode Island was mistress of the finest and 
most extensive harbor or port in the United 
States at that time — the harbor of ^Newport. All 
the goods nearly that went to the large cities 
of New York and Boston — the foreign goods 
that supphed the markets of New England and 
New York — nearly all of them — were imported 
through Newport; and that little State levied 
taxes on their importations at her own pleasure. 
She was getting rich at the expense of her 
neighbors and confederates, in what was then 
nothing more than a confederacy. And one 
result and evidence of that will be found in 
a thing which perhaps you will all remember, 
that the State of Ehode Island was the last State 
which assented to the Federal Constitution, and 
that she did not give that assent until three years 
after it w^as promulgated. That was the reason. 
She was living on the commerce of the whole 
country and enriching her citizens at the expense 
of those of the other States. The port of Charles- 
ton did the same thing with refevence to the 
southern country — Georgia and North Carolina. 
The port of Norfolk did the same thing with* 
reference to Virginia and Maiyland ; and I am 



10 LECTURES OX THE COXSTITUTION 

not certain but our neighboring town of Alex- 
andria did the same tiling with reference to some 
portion of Virginia and Mar^^land. 

But that was not alL The trade between the 
States w^as taxed heavily, and this was one of the 
most difficult things to correct, and has been most 
persistently pursued up to the present hour. Jfot- 
withstanding for nearly one hundred years we have 
had, in the instrument of which I am speaking 
to you, the declaration that Congress shall have 
power to regulate the commerce with foreign 
nations and among the several States, there are 
to this hour, upon the statute-books of almost 
every State, laws violating that provision ; and 
if that provision of the Constitution were re- 
moved to-morrow, this Union would fall to pieces, 
simply by the struggles of each State to make the 
property owned in other States pay its expenses. 
Within two weeks we have had before the Su- 
preme Court three cases in which that point has 
come up (and we will have several more of 
them). One of them was from Pennsylvania, 
in which I had the honor to deliver the opinion 
of the court, in which that State declared that 
auctioneers should pay a license-tax of such 
a percentage upon their sales of all goods not 
produced in the State of Pennsylvania; which you 



OF THE UNITED STATES. 11 

see at once is a discrimination and a tax upon 
all goods, sold at auction, produced in sister 
States. And it is not long since we had a case 
coming from the city of St. Louis, where an 
ordinance of that citj% authorized by the State of 
Missouri, imposed a tax upon all peddlers except 
those who sold goods produced in the State. And 
the thing is infinite. We have now pending be- 
fore us, and undecided, a question that was argued 
a month ago, in which the city of Baltimore, 
authorized by a statute of the State of Maryland, 
imposed a wharfage-duty upon all produce land- 
ing at a wharf of the city, other than the produce 
of the State of Maryland ; so that the fish and 
other produce of Virginia, Pennsylvania, and 
other States, had to pay a tax for landing, while 
the produce of Maryland had none.* 

It was this tendency of each State to make a 
grabbing business of supporting its government 
out of taxes upon the property of other States, or 
on the produce which must go through one State 
to another, that more than any other compelled 
the formation of the present Constitution. 

Now, the importance of understanding this fact 
as one of the reasons for forming the Constitu- 

*Tlie court lias since decided the law to be unconstitu- 
tional. 



12 LECTURES ON THE CONSTITUTION 

tioD, is quite apparent. A key to the construc- 
tion of a statute or a Constitution, is to inquire 
what was the evil to be removed, and what rem- 
edy did the Constitution propose; so that when 
any of these questions come up, requiring judi- 
cial construction of a clause of the Constitution, 
we go back to ascertain the evil that was in- 
tended to be remedied. 

The Articles of Confederation were a rope of 
sand ; the nation was only a nation in name; and 
when the framers of the Constitution came to 
their work with a full view of the importance of 
it and of the evils to be remedied, they declared 
that this instrument which they framed was no 
longer to be a rope of sand, but that they were 
framing an instrument and instituting a govern- 
ment for common defense and general vrelfare ; 
and they used language no longer speaking for 
the States individually, who might struggle with 
each other, but they said : " We, the people of 
the United States, do ordain this instrument to 
be our Constitution." It was then that a na- 
tion was born. 

Of course, when these delegates all came to- 
gether, they must have had among them a great 
deal of the philosophy of government. Probably 
no nation or people, as young as ours then was, 



OF THE UNITED STATES. 13 

ever had as many men thoroughly versed hi that 
philosophy — as many men who had given vigor- 
ous attention, educated and trained attention, to 
the science of government, as were to be found 
in the United States at the time this instrument 
was to be made. And, fortunately, society was 
in a condition when personal aspirations and ma- 
lign influences were not brought to bear — proba- 
bly could not be brought to bear, from the fact 
of the wisest and best men being sent forw^ard to 
make that Constitution. In that we have reaped 
the benefit of the good fortune of our ancestors. 
In considering the forms of government, we 
find that there are three primary forms: the mon- 
archy, the aristocracy, and the democracy. I am 
not here to tell you what a monarchy is, or what 
either of these is. You know that a monarchy, 
pure and simple, is the despotic government of 
one man. An aristocracy is perhaps less des- 
potic, but clearly arbitrary — a government of the 
leading men or spirits of a country, whether they 
be gentlemen or hereditary noblemen — not one, 
but many — but still professing to act by the 
power of the people ; a beneficial power and in- 
fluence, acquired either by inheritance or by con- 
quest; and this is called an aristocracy. A de- 
mocracy, pure and simple, is said to be a govern- 



14 LECTURES ON THE CONSTITUTION 

meat by all the people. There have been very 
few of these governmental forms, simple and 
pure, in the history of the world ; perhaps in re- 
gard to monarchy there have been, and possibly 
always will be, monarchs who are absolute, at 
least who are limited by no acknovdedged re- 
straint on their authority. In regard to aris- 
tocracies, they have been but few; and probably 
the Venetian government, which was carried on 
with great prosperity for three or four hundred 
years by a set of hereditary nobles and success- 
ful merchants, was the purest example of aristoc- 
racy that the world has ever seen. England 
was, a century ago, more of an aristocracy 
than anything else. But a pure democracy 
is almost unknown, from the difficulty of hav- 
ing all the people participate in the functions 
of the government; because these functions not 
only require the processes of government, but 
they include the process of making laws and the 
process of administering those laws. Such was 
the democracy of Athens, probably the only 
highlj'-civilized form of democracy that ever ex- 
isted — a government in which the common peo- 
ple, from the streets and everywhere, met and 
decided lawsuits. Questions of the right of prop- 
erty; questions of hfe and death of the Individ- 



OF THE UNITED STATES. 15 

ual ; questioDS of banishment and censure of their 
officers; questions of the proprietorship of land; 
questions of the election of the chief officers; 
questions of making war and peace, — all were 
submitted in that democracy to the people that 
could gather together in the public buildings of 
that little city of Athens. But those of j^ou who 
have read its history know that it was a perpetual 
scene of turmoil ; how little security there was 
for life when they made their best men drink the 
hemlock, and banished their best generals for a 
year and perhaps for life. While it stimulated 
the intellect of that race and made them prize 
human eflbrt directed in channels of imagination, 
of science, and of literature, it still w^as far from 
being a place where personal rights w^ere respect- 
ed, and where any man of modern times would 
'be willing to make a home. 

But our forefathers,, when they got together, 
did not adopt either of these forms, though it is 
common to say that ours is a goveriuiient of the 
democracy. In the true sense of a democracy, 
by wdiich all the acts of the government are per- 
formed by all the people, it is aboqt as far from 
a democracy as any other civilized government 
that we know of. But they determined that 
the people should be felt, and they made wh^t 



16 LECTURES ON THE CONSTITUTION 

we call a composite government — a representa- 
tive republican government — a government in 
which the powers that belong to all sovereignties 
were divided and placed in different depositories; 
and the question of that division was one of 
very great interest. The proper division of 
these powersL has since come to be recognized 
and assigned in all good governments, and that 
division is into the executive, legislative, and 
judicial branches or departments. By executive, 
is meant the branch which enforces the law ; by 
legislative, is meant the branch which enacts the 
law; and by judicial, is meant the branch which 
administers the law, as regards both public and 
private rights, as between the citizens themselves 
and between the citizens and the government, 
You will observe, however, in this Constitution, 
that the lines which mark that division are not 
perfect. Perhaps it is impossible that they should 
be perfect. Perhaps it is desirable that they 
should be more perfect than tiiey are. As re- 
gards the executive branch of the government, 
for instance, that was not completely vested in 
the President ; for we find that the Senate was 
required to give its assent to all treaties made by 
the President before thej were valid. The Sen- 
ate is also required to confirm all higher nomina- 



OF THE UNITED STATES. 17 

tlons to office before they become valid appoint- 
ments. So that these two great functions, which 
are nsually classed as executive functions of the 
government, — appointment to office and making 
treaties, — are divided, to some extent, in their re- 
sponsibihty and in the forms necessary to give 
them efficacy, between the President of the United 
States, who is the executive, and the Senate of 
the United States, which is one of the branches 
of the legislative department. 

So, also, declaring war and making peace^ 
which in all other respects is held to be an ex- 
clusively executive function, and which in the 
popular government of England remains in the 
Crown alone — the Crown recently having de- 
clared war without asking Parliament and having 
made peace in the same manner, and that being 
the common form of doing the thing — is a func- 
tion in which the executive and legislative 
branches of our government participate. The 
Constitution of the United States says that Con- 
gress shall have power to declare war; and the 
President takes part in that matter only as he is 
part of the legislative branch. So when you 
come to the legislative branch of the govern- 
ment, you will lind that that is not separate 
from the executive, because our laws require 



18 LECTURES ON THE CONSTITUTION 

that they shall be signed b}- the President. He 
thus becomes an important part of the legislative 
department of the government; and if he does 
not choose to sign them he usually sends them 
back with his reasons and objections^ which is 
commonly called the veto, and it then requires 
two-thirds of the legislative houses to enact them 
into laws over that veto. So that the legislative 
power is not contided wholly to the legislative 
branch. 

Perhaps the judicial power is more nearly left 
perfect in the hands of the judiciary than any 
other, but not wholly so ; for the power of fram- 
ing impeachments and trying them, which is 
eminentl}^ a judicial function — as much so as it 
is to indict a man and try him for murder — w^e 
find belongs wholly and exclusively to the two 
branches of the legislative department. The 
House of Kepresentatives finds the impeachment, 
and the Senate tries it. 

But, after all, those are only exceptions; and 
it remains true, that for general purposes, and 
very useful purposes, the best feature of this 
Constitution is that it does make this substantial 
separation of power among these three depart- 
ments. 

These departments, under our form of gov- 



OF t;he united states. 19 

eminent, are co-ordinate in dignity. Neither 
of thern is intended, by the theory of our Con- 
stitution, to be subjected to the other. The 
President cannot be compelled to make a treaty 
or appoint anybody to office that he does not 
want to. The legislature cannot be compelled 
to pass any laws, and the legislature alone can 
pass laws. The judiciary alone can construe the 
laws and enforce the laws by judgments of the 
courts. In the case of Dodge i\ Woolsey, in 18 
Howard, Mr. Justice Wayne has advanced this 
idea in language so much better than any I can 
use, that I give his own words : 

''The departments of the government are legislative, 
executive, and jndielal. They are co-ordinate in deo'ree 
to the extent of the powers deleg-ated to each of them. 
Each in the exercise of its power is independent of tlie 
others; but all rightful!}^ done by either is binding upon 
the others. The Constitution is snpreme over all of them, 
because the people who ratified it have made it so." 

When the Constitution was first framed it was 
received by a great many thinking people with a 
great deal of distrust. An examination of the 
history of the conventions of the States which 
were called to ratify and confirm' that instru- 
ment, without which it would have had no effi- 
cacy, will show that it was fiercely assailed, and 
the debates upon it in regard to its adoption in 



20 LECTURES ON THE CONSTITUTION 

several of the States showed that the issue was 
doubtfiiL 

It is well, perhaps, to consider for a moment 
some of the objections to that instrument in 
the light of ninety years' experience. One of 
the greatest was that it conferred too much 
power upon the central or Federal government, 
and curtailed too largely the powers of the State 
governments. You must remember that these 
colonies had just been emancipated from the 
parent government. They had worked together 
for a short time, and not very harmoniously. 
Each man felt that in his own State he had a 
larger interest than he had in the welfare of all 
the States ; and it is one of the most creditable 
and remarkable things that the superior knowl- 
edge and influence of a few great minds were 
able to overcome these prejudices and enact that 
Constitution into a form of government. But 
several of the States, in the act of adopting it, pro- 
posed amendments to be made under the provis- 
ion in that instrument for amendments ; and with- 
in two years after it was ratified Congress passed 
and proposed to the dilferent States thirteen 
amendments to that instrument, eleven of wdiich 
were ratified by the recjuisite number of States 
to make them part of the Constitution. ^ In those 



OF THE UNITED STATES. 21 

amendments, when you look at them carefully, 
you will see this distrust of the power of the cen- 
tral government, and this desire to protect the 
States from being overwhelmed and annihilated 
by this power. That fight — that contest, I 
should rather say — has gone on, I might say, to 
the present time. I would be glad to say that 
with the recent war it was settled ; but wiiile it 
has undergone various discussion, it is not prac- 
tically settled. But it is suflicient to say — I think 
I can venture to say ; others may disagree with 
me — that the experience of ninety years under 
this government has shown that danger to the 
perpetuity of government, danger to the people 
of this country, is not in the central power, and 
was not in the central power, but was in the 
power of the States. ^ [Applause.] 

Another objection, second in importance in 
the minds of those who w^ere not favorable to 
that Constitution, was the power of the exec- 
utive. It was said to be inconsistent with the 
genius of the government which we were es- 
tablishing, that any one man should, for the 
period of four years, exercise the extraordinary 
power which that instrument vested in the Pres- 
ident of the United States. It was said that the 
appointment of all the officers of the Federal 



22 LECTURES ON THE CONSTITUTION 

government, the distribution of all its patronage, 
the control of its army and its navy, would, in 
process of time, enable some man to build up a 
power which could not be resisted; that some 
man would arise who, by that power and with 
that inclination, would destroy the really demo- 
cratic features of our government, and establish 
a monarchy in its place. 

Xow, of all the delusions, of all the mistakes 
which our ancestors made, that seems to have 
been at once the most likely to be made, yet 
which has practically turned out to be most un- 
true. 

It is my deliberate opinion that, of all the three 
branches of government, the executive branch has 
been in time, under the construction given that 
instrument and its practical administration, most 
shorn of the powers which the Constitution grant- 
ed it. The President of the United States for 
the iirst forty or fifty years did practically nomi- 
nate all the officers; he selected his Cabinet, a 
few private friends, occasionally a member of 
Congress or two, makhig suggestions. But, with- 
in the memory of many men around me, the 
time arrived when the President (as the gentle- 
man who has travelled around the world with 
General Grant reports him as saying) but regis- 



OF THE UNITED STATES. 23 

ters the edict of members of Congress in appoint- 
ments to office; that is to say, in the function 
about which mainly the executive is employed, 
he has become subjugated to the legislative 
branch of the government; and of all the de- 
kisive ideas, of all the fallacies that ever entered 
the brain of anybody in this world, the most 
delusive and fallacious is the idea that any exec- 
utive, that a Jackson or a Grant, or anybody in 
this country, will ever make himself a perpetual 
dictator in our time and generation, or in gen- 
erations to come. [Applause.] 
-The branch of the government which has 
grown in its powers, which perhaps a sagacious 
man might have seen would so grow, is the legis- 
lative department of the government. Coming, 
as it does, more immediatel}^ from the people, at 
least one branch of it, and all of it representing 
either the States or the people, who look to their 
Senators and to their members as representing 
them in all their legislation and all that looks 
like legislation, and a great deal that is not legis- 
lation,— the people tolerate in these, their repre- 
sentatives and members, what they wdll not tole- 
rate in the executive, what thej will not tolerate 
in the judicial department of the government; 
because they say, "We think that if they do badly 



24 LECTURES ON THE CONSTITUTION 

this veai% we can tura them out next, and we are 
not afraid of them." But this has been a very 
unfortunate sentiment. I speak it with due def- 
erence to a co-ordinate branch of the govern- 
ment. I have no doubt that the dangers in our 
form of government are greatest in the legisla- 
tive branch of it. They are extending their 
borders^ and they are making broad their phy- 
lacteries in every direction. They pass laws 
sometimes which are unconstitutional, and they 
assert powers which are executive and judicial 
in their nature and character. -" 
^ The judicial branch of the government is, of 
all others, the weakest branch. It has no army; 
it has no navy; it has no press; it has no officers 
except its marshals, and they are appointed by 
the President and confirmed by the Senate; and 
the marshals that we send our processes to can- 
not be removed by us, but they maj^ be removed 
any day by the executive. The clerks whom 
they permit us in some form or other to appoint, 
have salaries and compensations regulated by 
the legislature; and a clerk w^ho gets §20,000 in 
fees, pays all but §3,500 into the Treasury of the 
United States. We are, then, so far as the ordi- 
nary forms of power are concerned, by far the 
feeblest branch or department of the govern- 



OF THE UNITED STATES. 25 

ment. We have to relv — I beg pardon for using 
the personal pronoun in this discussion — but the 
judiciary have to rely on the confidence and re- 
spect of the public for their weight and influence 
in the government ; and I am happy to say that 
the country, the people, and the other branches 
of the government have never been found want- 
ing in that respect and in that confidence. It is 
one of the best tributes to the American nation — 
a tribute which it deserves above all others even 
of the Anglo-Saxon race — a tribute which can be 
paid to no other race like the Anglo-Saxon 
race — that they submit to the law^ as expounded 
by the judiciary. [Applause.] 

Under all the excitement of wealth ; of money; 
of the contest of railroads; of political existence — 
everything which can be got before the court — 
everything which can come fairly within judicial 
cognizance — our people seem to think is safe. 
And whatever may be said or felt about the 
recent trouble in the State of Maine, there is no 
grander phenomenon to be found in the historj^ 
of this country than a body calling itself a legal 
legislature and government quietly laying down 
its functions and dispersing at the mere opinion 
of a court that they were not the proper govern- 
ment. [Applause.] - 
9 



26: LECTURES ON THE CONSTITUTION 

Of course, gentlemen, there are nice questions 
between these various departments of the govern- 
ment as to the lines of clemarkation ; and it has 
always been an anxious question, and always must 
be one, where there is a conflict in the claims of 
these branches of the government. While it is 
the duty of the court to construe the great instru- 
ment, the Constitution, whenever it shall come 
before it in a fair judicial proceeding, and it can 
construe it in no other way, — for it is a delusion, 
it is a mistake, the idea that the Supreme Court 
of the United States w^as created with one of its 
special functions to interpret and construe that 
instrument, — I say w4iile, however, it is the spe- 
cial function of the courts to construe the Consti- 
tution in a judicial proceeding, with parties prop- 
erly before them, it is equally the duty of each 
member of Congress and of the executive to 
make that construction for himself when he is 
called to act within the sphere of his duty. And 
I think myself I have changed one of my beliefs 
of early life, when I used to think that when 
a Marshall and his compeers had decided that 
the Bank of the United States was a flnan- 
cial institution authorized by the Constitution 
of the United States, the legislative and execu- 
tive branches should also concede that fact. I 



OF THE UNITED STATES. 27 

am prepared to admit, that while they are bound 
to consider that in that particular — that is, its 
executioirof the law as between the parties — all 
the other branches of the government must yield, 
yet when it comes to the conscience of any mem- 
ber of Congress or any executive to saj' , " Can I 
sign a bill?" or '-Can I vote for a measure?" it 
is for him to decide, on the best lights he has, 
whether the act he is going to do is wdthin the 
constitutional power of the body of which he is a 
member. Therefore you see the difficulty in get- 
ting a settled construction of this instrument. 
And since ever}^ branch of the government, wdien 
called on to act originally, is bound to act on the 
judgment it forms of its own powers, you can 
understand the reason that for eighty or ninety 
years the question of the relations of the States 
to the Federal government should remain an 
open and undecided question. 

"We are, however, getting a body of decisions 
of recognized principles. The instrument is being 
construed by the judicial branch more than the 
others, but largely by all others, in the light of the 
events which have arisen to test it. The construc- 
tion which was put upon the Constitution during 
the recent insurrection — ^the powers that could be 
exercised in such an emergency by the President, 



28 LECTURES ON THE CONSTITUTION 

by the War Department, bv the Legislature, by 
the pJudiciary, all have been tested — all have un- 
dergone investigation; and while no man can 
say that all the decisions have been correct, be- 
cause they have been varying, it must, in the 
light of any impartial mind, be clear that we are 
completing a construction and are deciding a 
great many things that w^ill remain forever, with 
regard to the Constitution. 

^ It is very desirable that it should be so. All 
loose construction of authorit}^ is dangerous; all 
construction of authority too limited to serve the 
purpose for which it is given is injurious. You 
must look at that instrument in the light of the 
purposes which it was intended to answer; in 
the light of the evils it was intended to remedy; 
in the light of the fact that we w^ere a dissolving 
people, and the instrument was intended to bind 
us anew forever; in the light of the fact that the 
government was going to pieces for want of power 
to protect itself, and we must consider that one 
of the purposes of the Constitution was to give 
the government that power; in the light of the 
fact that the Confederacy — the government un- 
der the Articles of Confederation — could only . 
request the States to do a great deal that w^as 
necessary to carry on the Federal government. 



OF THE UNITED STATES. 29 

and it was desirable to give the new government 
the power of operating directly upon the people 
without going through the instrumentality of the 
States, and that instead of laws which before that 
Constitution w^as made were intended to have 
effect through the State legislatures, the govern- 
ment should now have direct effect through the 
legislation of Congress — the action of the legis- 
lative branch — and the judiciary, upon the peo- 
ple themselves, without the consent, and even 
against the Welshes, of the States, if it were nec- 
essary. 

In all these ways, when you come to construe 
this instrument like a remedial statute, like a con- 
tract between individuals, it must be construed 
in the light of the times in which it was made— 
of the evils to be remedied, of the good to be 
efl-'ected, and, above all, in the light of the idea 
that it was made to create a perpetual govern- 
ment of the people, among the people, and by 
the people. c/ 



30 LECTURES ON THE CONSTITUTION 



Second Lecture, 



On last Friday evening, gentlemen, you will 
remember that I closed my remarks by some 
observations on the division which the Constitu- 
tion made of the powers to be exercised by the 
national government into the three departments, 
legislative, executive, and judicial. As students 
of law, I take it for granted that the branch of 
the government in which you are most interested, 
or at least in which j^ou are most interested in 
having an exposition of its powers and duties, is 
the judicial branch, and that is the subject on 
which I propose to address you this evening. 

After the manner of the clergy, I presume 
that the best thing I can do is to read you my 
text ; and as the whole chapter is not a very 
long one, although a very important one, I will 
read you the third article of the Constitution. 
That instrument devotes one article to the legis- 
lative, one to the executive, and one to the judi- 
cial branch, and these are the main articles of the 
Constitution. There are then some provisions 



or THE UNITED STATES. 31 

establishing private rights ; some provisions con- 
cerning the powers of the two houses; but the 
main bodj" of the Constitution is to be found in 
the three articles. The judicial article comes 
third and last. It says : 

"• The judicial power of the United States shall be vested 
ill one Supreme Court, and in such inferior courts as the 
Con<>Tess may from time to time ordain and establish. 
The judges, both of the supreme and inferior courts, shall 
hold tlieir offices during good behavior, and shall, at stated 
times, receive for their services a compensation, which 
sliall not be diminished during their continuance in office. 

''Sec. 2. The judicial power shall extend to all cases, 
in law and equity, arising under this Constitution, the 
laws of the United States, and treaties made, or which 
shall be made, under their authority ; to all cases affect- 
ing ambassadors, other public ministers, and consuls ; to 
all cases of admiralty and maritime jurisdiction; to con- 
troversies to which the United States shall be a party; to 
controversies between two or more States ; between a 
State and citizens of another State ; between citizens of 
different States; between citizens of the same State claim- 
ing lands under grants of different States, and between a 
State, or the citizens thereof, and foreign States, citizens, 
or subjects. 

"'In all cases affecting ambassadors, other public min- 
isters, and consuls, and those in which a State shall be 
party, the Supreme Court shall have originaj jurisdiction. 
In all the other cases before mentioned, the Supreme Court 
siiall have appellate jurisdiction, both as to law and fact, 
with such exceptions and under such regulations as the 
Oonoress shall ujake. 



32 LECTURES ON THE CONSTITUTION 

*''The trial of all crimes, except in cases of impeach- 
ment, sliall be by jury, and such trial shall be lield in the 
State wliere tlie said crimes shall have been committed; 
bnt wlien not committed within any State, the trial sliall 
be at snch place or places as the Congress may by law 
have directed. 

''Sec. 3. Treason against the United States shall con- 
sist onl3Mn levying war against tliem, or in adhering to 
their enemies, giving them aid and comfort. 

'*]Sro person shall be convicted of treason nnless on the 
testimon}" of two witnesses to the same overt act, or on 
confession in open conrt. 

''The Congress shall liave power to declare the piuiish- 
mont of treason ; but no attainder of treason shall work 
eoi-riiption of blood, or forfeitnre except during tlie life 
of the person attainted." 

IS'ow, I propose to turn your attention first to 
the second section : 

''The judicial power shall extend to all cases, in law 
and equit3\ arising under this Constitution, the laws of the 
United States, and treaties made, or winch shall be made, 
under their authority." 

The first thing that jnstifies or requires any 
criticism is on the words '^judicial power.'^ 
What is judicial power? It would not do to 
answer that it is power exercised by the courts^ 
because one of the very things to be determined 
is what power the coiirts may exercise; and it is 
very difficult to find any exact definition made 
to liand. I know it cannot be found in any of 



OF THE UNITED STATES. 33 

the old treaties, or any of the old English au- 
thorities or judicial decisions, for a very obvious 
reason, that while in a general way they had this 
division between the legislative and judicial 
power, yet their legislature was in the habit of 
exercising a very large part of the judicial power 
of the country. The House of Lords was often 
the court of appeals, and they were in the habit 
of passing bills of attainder and of enacting con- 
victions for treason in Parliament. The judicial 
power is defined, perhaps, better in some of the 
reports of our own courts, especially the Supreme 
Court of the United States, than in any other 
place, because it has oftener been the subject of 
comment, oftener necessary to be decided, in that 
court, than anywhere else. The judicial power 
is the power of a court to decide and pronounce 
a judgment and carry it into effect between per- 
sons and parties who bring a case before the 
court for judicial decision. And hence, you see, 
after the words ^\judicial power," the language 
goes on, <^^ shall extend to all cases" of a partic- 
ular character, describing wdiat character. So 
that, before there can be any proper exercise of 
the judicial power, there must be "a case" pre- 
sented in court for its action. A case implies 
parties ; a case implies an assertion of rights ; a 



34 LECTUKES ON THE CONSTITUTIOX 

case implies a wrong to be remedied ; and our 
decisions in the Supreme Court of the United 
States, and in the other various courts, are full 
of definitions of what a case is. I will read some 
of them very shortly, as I find them in Mr. Pas- 
chal's "Annotated Constitution," a very valuable 
work in giving you the authorities to which you 
had better refer, so that you may see the whole 
of their leading features. I am compelled to 
omit much in the short time to which I am lim- 
ited in these lectures. 

"A case" — says Chief Justice Marshall, in the 
case of Osborn against the United States Bank^ 
9th Wheaton, p. 319 — "a case arises, within the 
meaning of the Constitution, when an}^ question 
respecting the Constitution, treaties, or laws of 
the United States has assumed such a form that 
the judicial power is capable of acting upon it." 

And in this connection, it is proper, I think, 
that I should endeavor to correct a very erro- 
neous impression that prevails with regard to 
the powers of the Supreme Court of the United 
States as the expounder of the Constitution. I 
have seen it asserted, even hi popular treatises, 
in public speeches, and in political harangues, 
that the Supreme Court of the United States is 
the final expounder, and that it was made for tl^e 



OF THE UNITED STATES. 35 

purpose of expounding the Constitution, and that 
one of its primaiy functions is to do that. But 
it has been over and again held in our court that 
all we can do in the way of expounding the Con- 
stitution is to decide the questions in which the 
Constitution may be involved in a suit between 
proper parties. To be sure, in some cases these 
parties have been very dignified ones. They 
have been the United States; they have been 
States suing each other in our courts ; but oft- 
ener than otherwise — I should say, nine times 
out of ten that the court has been called upon to 
construe the Constitution of the United States — 
it has been a question of right between private 
individuals, in which the validity of a law, or 
of a right asserted by one side and denied by 
the other, has to be settled by the Constitu- 
tion of the United States. So that we only do 
in our w^ay in ^a higher position— as being the 
last court to which such questions can be 
brought — what every court iri the United States 
has to do, whether it is a State court, a Federal 
court, or any other court. We only decide such 
questions as they arise in the progress of ordi- 
nary litigation. 

This, then, is what I have to say upon the 
subject of cases, as the Constitution is affected, 



S6 LECTURES ON THE COXSTITUTIOX 

with regard to the word " cases." " The judicial 
power shall extend to all cases, in law and in 
equity, arising under this Constitution, the laws 
of the United States, and the treaties made, or 
which shall be made, under their authority." 
That is to say, the judicial power of the Federal 
government extends to all cases where a right 
exists under the Constitution, a right under the 
laws of the United States which are made in 
accordance with the Constitution, or a right un- 
der a treaty which shall be made under the au- 
thority of the Constitution. 

That class of cases the Federal power extends 
over, covers them, and they come within its ju- 
risdiction. '^All cases, in law and in equity." 
There is a separate clause with regard to ad- 
miralty, which I will speak of presently. It 
must be with the exception of admiralty "in 
law^ or in equity," — and an attempt has been 
made to exclude a very large class of cases aris- 
ing in the State courts, and in other courts, which 
were of an anomalous character; remedies given 
by peculiar modes of proceeding — summary rem- 
edies by attachment, and summary proceedings 
at variance with the common law, which were 
therefore said not to be suits at law, and which 
yet did not come under the head of equity juris- 



OF THE UNITED STATES. 37 

prudence. But the decisions of the Supreme 
Court of the United States are abundant to the 
effect that, with the exception of admiralty, all 
the modes of procedure for the assertion of rights 
must be ranged under the one class or the other, 
of law or equity, within the meaning of that 
clause of the Constitution. Equity is a limited 
jurisdiction which has grown up since the com- 
mon law, which in some sense is a restriction of 
and departure from the common h\w. There is 
not much difficulty as to what are cases in equity ; 
and I have no doubt you have an able professor 
who has told you, or will tell you, what is equity 
jurisdiction. It is sufficient to say that the Fed- 
eral courts have held that all the cases that are 
neither admiralty nor equity are, within this 
clause of the Constitution, cases at law. Indeed, 
the Supreme Court have held — they have been 
compelled to hold, in regard to the improve- 
ments, I will venture to say, in the modes of pro- 
cedure which have been adopted by the codes of 
the various States, in most of which equity and 
law have been consolidated, and in reference to 
many statutes giving new rights, new modes of 
procedure, new remedies — the Supreme Court 
have been compelled to hold that, when the Fed- 
eral courts come to administer those ri2:hts and 



38 LECTURES ON THE CONSTITUTION 

those remedies, they iiiiist range them on the 
dockets of those courts on the equity side, or on 
the law side, as the nature of the right asserted, 
or of the remedy given, may require. We 
do this as equity is understood and was under- 
stood in the Enghsh courts at the time of the 
Revolution ; and we have held that in the Fed- 
eral courts no action of the States, no statutes 
of the States, no laws of the States, or rules 
v/hich have been adopted at law or in equity 
in State courts — that none of them can abolish 
the separate and distinct equity jurisdiction of 
the Federal courts; and that wherever a case 
is, in its nature, one which belongs to the equi- 
table jurisdiction of the courts, it must be tried 
on the chancery side of the Federal court which 
has taken charge of it. One of the neces- 
sary distinctions in that regard is, that another 
provision of the Constitution declares that in all 
suits at law the value of which exceeds twenty 
dollars, every one shall have the right of trial by 
jury, and the right of trial by jury is no part of 
the system of equity jurisprudence; so that the 
Federal courts have been compelled to keep 
separate and distinct, cases at law and cases in 
equity. 

"The judicial power shall extend to all cases. 



OF THE UNITED STATES. 39 

ill law and equity, arising under this Constitu- 
tion, the laws of the United States, and treaties 
made, or which shall be made, under tlieir au- 
thority." That is to say, a case arises under the 
Constitution whenever some man's constitutional 
right is denied to him ; some right which this in- 
strument gives him — right of property, right to 
hberty, right to vote — whatever right he can 
trace under this Constitution. That is a right, 
which, if it is impinged, or denied, or delayed, he 
can bring into the courts of the United States by 
virtue of that provision of the Constitution. 

And so of the laws of the United States: '^all 
cases arismg under the laws of the United States." 
Now, the Constitution itself is a very general 
instrument. The rights which it confers are in 
very general language; but these rights, these 
duties, these obhgations, have been put into full 
operation — ^liave been defined and perfected by 
statutes which are called laws of the United States. 
"Whenever, therefore, an individual has a claim 
or a right under an act of the United States 
which he can enforce, which can only be en- 
forced, or which he seeks to enforce by the judi- 
cial power, the place to seek that power is in 
some of the judicial departments or branches of 
the United States. 



40 LECTURES ON THE CONSTITUTION 

*'The treaties made, or which shall be made, 
under their authority." It is proper that I should 
make some qualification in regard to the word 
" treaties." A treaty always means a compact or 
convention between two independent nations or 
governments. Independence is necessary, at 
least quasi; some degree of independence is neces- 
sary in order that the treaty may exist between 
the parties who make it. So tliat, so far as the 
treaty itself is'a national obligation to be enforced 
b}' the action of the States who have made it, by 
war, or by negotiations, or by modification, or 
by appeals to the State, the courts have nothing 
to do with it, and the courts must follow and 
abide by what the government proper does upon 
that subject — what, in the language of the Su- 
preme Court of the United States, we call the 
political branches of the government having 
charge of that relation.. 

But a treaty may be the foundation of a private 
right, and then it becomes a subject of judicial 
action, as any other private right does. An in- 
stance occurred in the Supreme Court within the 
last six or eight weeks. There are treaties be- 
tween the United States and all or nearly all 
European governments coiicerning the right to 
inherit land by aliens. A man who comes from 



OF THE UNITED STATES. 41 

^" a European countr}\here^ until he becomes nat- 
uralized, is an alien. He may live here and die 
here, and have children here, but he is an alien. 
An alien by the common law, by the prevalent 
law, could not inherit real estate, and when he 
died it could not goto his children; his father 
could not take it, he being an alien. The most 
of the States of the Union have passed laws to 
remedy that evil, but some of those laws have 
been imperfect, and m.any have passed no laws at 
all. But the United States Government has en- 
tered into treaties because there were so many 
aliens, such a very large proportion of our popu- 
lation are emigrants from these countries, who 
come here and do business, acquire property, 
and never take out naturalization papers; and 
since it has not been shown that Congress has 
any power over the subject, our government 
has entered into treaties with foreign nations by 
which these men can inherit the property of their 
fathers. 

Kow, we had a case from the State of Virginia 
the other day, in which the law of Virginia had 
failed to conform itself to this treaty. The proper 
authorities of the State of Virginia had seized 
the dead man's estate, and had instituted pro- 
ceedings in the nature of what we call escheat, 



42 LECTURES ON THE CONSTITUTION 

which is a process by which property that does 
not belong to anybody else goes to the govern- 
ment; and in their proceedings they disregarded 
the rights of this man, and his case was brought 
under that provision of the Constitution to our 
court, and we held that lie was entitled to the 
property by virtue of the treaty. That was a 
case arising under a treaty made in pursuance of 
the Constitution. 

Now we go on further. It shall not only extend 
to cases arising under tlie Constitution and the laws 
of the United States and treaties made, or which 
shall be made, under its authority, but the text 
goes on and assumes another form of expression. 
Heretofore it has been dealing with the subject- 
matter of the suit — with the nature of the contro- 
versy going on. Now it uses another form 
of expression ; it shall extend to all cases af- 
fecting classes of people ; " ambassadors and other 
public ministers and consuls," by which, you 
understand, every ambassador from a foreign 
government to this country, or if he be not of the 
grade of an ambassador, if he be a minister — • 
because these diplomatic gentlemen have various 
grades, very high-sounding grades — Ministers 
Plenipotentiary, I think, some of them are, and a 
few of them have the title of Ministers Plenipo- 



OF THE UNITED STATES. 43 

tentiary and Edvoj Extraordinary ; I understand 
that Ambassador is the highest office of any of 
them ;— but whether they be ambassadors, or pub- 
lic ministers, or mere consuls at our various ports, 
they have the right to have all their cases tried in 
the Federal courts — some branch of them. You 
understand the cause of that. These being repre- 
sentatives of foreign governments, independent 
nations, are not to be subjected to the powers of 
the States who have no relation to those govern- 
ments, but are to be brought before the courts 
of the Government of the United States, who can 
look into those troubles and right them. 

"To all cases of admiralty and maritime juris- 
diction." That is a very peculiar thing to be in 
that Constitution. I suppose the reason it was 
put there is, that while admiralty cases do not 
involve any law or statute of the United States, 
nor the Constitution of the United States, nor a 
treaty, yet at the time this Constitution was framed 
admiralty being supposed to be limited (as it was 
in England) to traffic on the ocean, to the affairs 
of vessels and seamen and navigators of the ocean, 
it was in the nature of an international relation, 
and, coming immediately in juxtaposition with the 
clause relating to ambassadors and ministers, I 
have no doubt that was the reason whv it was 



44 LECTURES ON THE CONSTITUTION 

taken out from ordinary cases and placed with 
the judicial power of the United States. That, 
however, is an interpolation in that clause of the 
subject-matter of jurisdiction instead of the char- 
acter of the party. 

The instrument now leaves the form of using 
the word "cases," and it leaves the reference 
to the subject-matter of jurisdiction, and pro- 
ceeds again to the person — to give jurisdiction 
by the description of persons or parties who shall 
come before the court; and instead of the case, 
it goes on to say — you wall supply the word "ex- 
tend" — "to controversies to which the United 
States shall be a party." Whenever the United 
States is a party in a suit the Federal courts may 
have jurisdiction — that is, courts acting under the 
Federal power, in which alone the United States 
can be sued, and which are courts established 
under the authority of the United States. Suits 
in which the United States may sue to recover 
property and taxes; suits on bonds against de- 
faulting officers; prosecutions for crimes against 
the United States, — all these are cases in which 
the United States is a part}^, and in which she 
sues in the courts of her own creation. 

" Controversies between two or more States." 
There never w^as any tribunal but one in the 



OF THE UNITED STATES. 45 

history of time, anterior to this Constitution, 
which had jurisdiction, in the full sense of the 
word, of controversies between States. The old 
Olympic Council, among the Greeks might pos- 
sibly have been called a court or tribunal in some 
sense, but certainly in no such sense as the Su- 
preme Court of the ITnited States is a court. 
They could meet and hear complaints of the 
Greek States against each other. Athens and 
Sparta and Corinth could meet before that coun- 
cil and conjplain of each other's acts, and the 
council could recommend what should be done, 
but they had no power to give it any eftect. The 
Constitution of the United States creates, as I • 
shall proceed to show in another clause, a court 
with jurisdiction of controversies between State?^, 
which can bring these States by process before it 
as it can bring the humblest citizen of the United 
States, and which can declare its judcrment, and 
which has usually been able to enforce its judg- 
ment. 

" Controversies between a State and the citi- 
zens of another State." That is to sa}^ ^A^iile a 
State cannot sue one of its own citizens in the 
courts of the United States, it can sue the citizens 
of other States in those courts. As this Con- 
stitution stood at the time when it was adopted, 



46 LECTURES OX THE CONSTITUTION 

a citizen of one State could sue another State in 
the courts of the United States; but as soon as a 
case of that kind originated, in which a State 
found its dignity infringed, and that a State could 
be brought into the court by everybodj^ the requi- 
site number of States modified that provision of 
the Constitution by declaring that it should not 
apply to suits by citizens of one State against 
another State. The jurisdiction is between States, 
and between a State and citizens of other States 
when the State is plaintift'. 

" Controversies between citizens of different 
States.^' And here is the largest source, as it 
turns out, of the jurisdiction of the Federal courts. 
You will understand that while the previous part 
of this section granting parties a right to sue in 
the Federal courts, in any action arising under 
the Constitution and laws and treaties of the 
United States, without regard to their citizenship 
or residence, these cases are those in which the 
character of the party gives the right to sue with- 
out reference to the nature of the matter at issue. 
And Ave have here a class of persons who can bring 
suits no matter what is the cause of action. On 
a promissory note, or assault and battery, or any 
other matter which can become the subject of a 
judicial investigation, this class of persons can 



OF THE UNITED STATES. 47 

bring the suits in the United States courts; and 
the largest source of jurisdiction up to the pres- 
ent hour has been from suits between citizens of 
different States. A person living in Maryland 
can sue in the United States courts a person liv- 
ing in Virginia, and e converso ; and so of other 
States. If you have the qualification of citizen- 
ship in one State, and jour adversary has it in 
another State, the suit can be brought in the Fed- 
eral courts. The reason for this, as has been fre- 
quently said by commentators and by courts, was 
the fear in the minds of the makers of the Con- 
stitution, that the local prejudice in favor of a 
man who is sued in the courts of his own State 
would result in uafair decisions agahist his non- 
resident adversary. As an illustration, one is 
living in Boston, and has a suit against a man 
living in Ifew Orleans. It was supposed that 
the popularity, the home influence, of the man 
sued in New Orleans, and possibly some irritation 
and ill-feeling against citizens of another State, 
would stand in the way of his getting justice. 
So, also, seeing that the legislature had provided 
that the man so sued for an amount as much as 
twenty dollars might deuiand a trial by jury, 
that the jury might be affected by this class of 
prejudices, it was thought wise that a tribunal 



48 LECTURES ON THE CONSTITUTION 

which was sapposed to be impartial slioiilcl be 
provided, and which did not owe its appointment 
or compensation to the State in which the case 
was tried. A court owing its own allegiance and' 
receiving its commission from the United States, 
would be a safer tribunal than a court which re- 
ceived its conmiission at the hands of a State, 
which could be influenced by the vote of a ma- 
jority of the citizens, and swayed more or less in 
its decisions from the absolute principles of jus- 
tice. It is on this account that this provision was 
placed in the Constitution; and it has been, and 
is to this day, in the ratio of four to one, the source 
of controversies, suits, and cases in the courts of 
the United States. 

Xow we- come again in this intermingling to a 
class of cases that depend upon questions partly 
of citizenship and partly of a particular issue 
^* between citizens of the same State claiming 
lands under grants of different States." At the 
time this Constitution was framed, Virginia claim- 
ed, I believe — or had claimed — a large part of the 
great Northwestern Territory; certainly there was 
a very large amount of land which was claimed 
uuder the autliority of the original State of Vir- 
ginia. Connecticut had a grant which is now in the 
State of Ohio. What is called now the Western 



OF THE UNITED STATES. 49 

Keserve, with a populatioii of a quarter of a mil- 
lion, was, by the grant under it, held from the 
State of Connecticut. It was supposed, where 
there was this evil of grants under the difterent 
States, there would be controversies, and this 
was a provision giving the Federal courts juris- 
diction of that class of cases. And finally, con- 
trovei sies " between a State or the citizens 
thereof and foreign States, citizens, or subjects.^' 
Every foreign State is entitled to sue in the Fed- 
eral courts any of our citizens ; and if we can get 
hold of anything they have, we have a right to 
sue them in the Federal courts. 

These are the classes of cases and the nature 
of the controversies and the characteristics of the 
parties who, by the fundamental law of this land, 
are authorized to bring suits in the courts of the 
United States. But in the largest part of them 
there is required an act of Congress to create the 
courts which should exercise this jurisdiction. 
Congress, immediately after the organization of 
the government, did create courts, but up to the 
present time — certainly up to within live years 
ago — a very large body of this judicial power was 
vested in no court at all, and therefore could not 
be exercised in a court of the United States ; and 
at the present hour there is a very large limita- 
3 



50 LECTURES OX THE CONSTITUTION 

tion upon the class of cases the power in regard 
to which has been vested by acts of Congress. 
For instance, no suit can be brouglit in the courts 
of the United 8tates where the amount in con- 
troversy does not exceed tive hundred dollars in 
value, with the exception of criminal cases, pat- 
ent cases, and revenue cases, in which the United 
States is concerned, w^here the United States may 
bring suit without reference to the value. But a 
citizen of the United States cannot bring a suit 
in a court of the United States, unless it be a 
patent case, an admiralty case, or where the value 
in controversy exceeds five hundred dollars. I 
understand there is a bill before Congress to ex- 
tend the rule of exclusion still further, by making 
the amount two thousand dollars; and it w^as 
only in 1875 that they passed a law which author- 
ized the bringing in the Federal courts of all 
cases arising under the Constitution, the laws, and 
treaties made under their authority. Previous to 
1875, if the party had a right, under the Consti- 
tution, the laws, or treaties, but had not the requi- 
site citizenship, he had to go before the State 
court; and when he had carried his .case through 
all the State courts, up to the highest, then, by a 
writ of error, the Cjuestion which concerned the 
Federal jurisdiction might be brought to the 



OF THE UNITED STATES. 51 

Supreme Court of the United States, if decided 
a2:aiust him. But now, by the act of 1875, that 
class of cases, of live hundred dollars in vahie, 
may be brought originally in the Circuit Courts 
of the United States. 

I have read to you and commented mainly on 
the second section in advance of the first section, 
because this is the section which defines the judi- 
cial power of the United States, which tells us 
the classes of cases that it may extend to, and 
which, therefore, is of primary importance to the 
student of law. 

The first section — which, perhaps, in the order 
of sequence, might have been first read — pro- 
vides that ''the judicial power of the United 
States"— this power of which we have been talk- 
ing — "shall be vested in one Supreme Court, 
and in such inferior courts as the Congress may 
from time to time ordain and establish. The 
judges, both of the supreme and inferior courts, 
shall hold their offices durmg good behavior, and 
shall, at stated times, receive for their services a 
compensation, which shall not be diminished dur- 
ing their continuance in office." 

"The judicial power shall be vested in one 
Supreme Court." There can be, therefore, but 
one Supreme Court. That court, once in exist- 



52 LECTURES ON THE CONSTITUTION 

ence, cannot be abolished, because its foundation 
is not in an act of Congress, but in the Constitu- 
tion of the United States. It is true, an act of 
Congress was necessary to define the number of 
these judges, to some extent to limit their juris- 
diction, as I shall presently show, and to provide 
for their compensation ; but that thing once done, 
you find that the judges shall hold office during 
good behavior. They cannot be legislated out' 
of office; they ^^ shall, at stated times, receive 
for their services a compensation, which shall not 
be diminished during their continuance in office." 
When they once have established the compen- 
sation of judges, they cannot diminish that com- 
pensation during the term of the judge then in 
office. You can see an obvious reason for that. 
As I told you the other evening, the judicial 
branch of the government is the weakest branch. 
It has neither the purse nor the sword. It is 
dependent upon annual appropriations for the 
bread on which its judges live. The courts are 
dependent upon the President's furnishing mar- 
shals who shall execute their decrees; and the 
makers of this w^onderful instrument, perfectly 
aware of the waves of passion which frequently 
run throusch the lescislative and executive branches 
of the government, and that this judicial body 



OF THE UNITED STATES. 53 

would be called upon occasionally' to declare 
what the Constitation means, and that what Con- 
gress had said were laws w^ere not constitutional, 
and that might provoke hostility, they said : "You 
cannot diminish these gentlemen's salaries be- 
cause they do not agree w^ith you." And they 
said more than that to the President: "You shall 
not turn them out of ottice; they shall remain as 
long as they shall live, provided they behave 
themselves." Well, I do not know how well 
they have behaved; but the onl\' mode of deter- 
mining that thing is by impeachment. One judge 
of the Supreme Court of the United States went 
through the process of impeachment and came 
out unhurt. 

So that this judicial body, these men, — I am 
not speaking alone of the Supreme Court, but of 
all the Federal courts, — have this protection. 
And speaking of this Supreme Court, I will call 
your attention again to the fact that this power 
is vested in one Supreme Court and such inferior 
courts as the Congress may from time to time 
ordain and establish. The Constitution does not 
admit that it should be abolished or the judges 
legislated out of existence. It hasJjeen argued 
very forcibly, probablj' with truth, that all the 
other courts can, by legislative act, be abolished, 



54 LECTURES ON THE CONSTITUTION 

and their powers conferred on other courts, sub- 
divided in different modes. 

It is declared in one of the clauses which I 
have read to you — the second clause of the sec- 
ond section — that in all cases affecting amhassa- 
dors, other puhlic ministers, and consuls, and those 
in which a State shall be a party, the Supreme 
Court shall have original jurisdiction ; that is to 
say, that there is a class of cases where j'ou need 
not go through the forms of the lower courts, the 
Circuit Courts, District Courts, or anything else; 
for if a man is an ambassador, or a minister, or a 
consul, or if a State is a party, — as the Constitu- 
tion as amended has it, if a State is a party against 
another State, or if a State clioose to bring a suit 
against the citizens of another State, — that suit 
can be brought at once in the Supreme Court in 
its original jurisdiction, the word '^origiiml" be- 
ing used in contradistinction to appellate jurisdic- 
tion. 

This class of persons, then, is limited, and the 
number of suits in the original jurisdiction of the 
Supreme Court is very small. It never amounts 
to more than eight or ten cases at a time. In 
all other cases before mentioned — that is, in all 
that large mass of cases to which the power of the 
Federal government extends — " the Supreme 



OF THE UNITED STATES. 55 

Court shall have appellate jurisdictioo both as to 
law and fact, with such exceptions and under 
such regulations as the Congress shall make." 
The Congress, therefore, can control very largely 
the appellate jurisdiction of the United States 
Supreme Court It has done so; it has passed 
laws at various times regulating that jurisdiction. 
One of its earliest laws upon the subject was that 
no ordinary suit between individuals could come 
to the Supreme Court for revision unless there 
were two thousand dollars involved; it is now 
five thousand dollars; and there is a pressure 
now, either by the creation of some intermediate 
appellate court or otherwise, to enlarge that sum 
to ten or twenty thousand dollars, so that only 
cases involving great amounts, and certain other 
cases of the class first mentioned, where the Con- 
stitution of the United States is involved, or where 
a conflict between State and Federal authority is 
involved, may go up to the Supreme Court of 
the United States. 

You see, therefore, gentlemen, that after hav- 
ing prescribed, with wonderful particularity, the 
classes and kinds of suits which may be brought 
before it, the Constitution has created a judicial 
department of this government as one of its three 
branches, and to that exclusively is deleo-ated the 



56 LECTURES ON THE CONSTITUTION 

judicial power of the government. The lines 
which mark legislative and judicial power are 
not very well defined, but they are becoming 
more and more so. Our courts are full of de- 
cisions on that subject. It is judicial power 
which, in a controversy, decides the rights to 
property- between citizens. It is not a legislative 
power ; and when a legislature, or at least the 
legislature of this Federal government, shall de- 
clare that the property which was, or is, the 
property of A, shall become the property of B, 
it is an invasion of the judicial function ; and the 
court would not hesitate to say that that was an 
act which belongs to the courts alone ; that the 
legislature cannot do it, because of this separa- 
tion in the Constitution of judicial and legislative 
powers. So the executive may, under certain 
circumstances, invade the personal rights of the 
individual, as regards his liberty. It has been 
done in cases of emergency; it may be done 
agam ; because the writ of habeas corpus may be 
suspenied, and the President or the executive 
officers may order a man into imprisonment. 
But in all these cases they are to be careful to 
exercise their power within the law. Whenever 
they do this arbitrarily, bj' creating a law for 
themselves in violation of the restrictions which 



OF THE UNITED STATES. 57 

both the Constitution and the laws have thrown 
around private rights, they invade the judicial 
functions and power of the United States, and 
the courts will set that man at liberty if their 
mandates are observed. 



58 LECTURES ON THE CONSTITUTION 



TWrd Lecturs. 



In these three addresses, gentlemen, that I 
have undertaken to dehver to you on the Con- 
stitution of the United States, it is impossible to 
do more than take up in a fragmentary way par- 
ticular parts of it. The instrument itself is so 
all-embracing; there are so many sections, sub- 
divisions, sentences, and clauses, each of which 
has been the suhject of judicial construction, and 
comment by the public press and in both houses 
of Congress, that it is impossible to do more 
in this way than to take up some particular sub- 
jects and speak to you about them. 

This evening I propose to turn your attention^ 
rather than deliver any formal lecture, to the pro- 
visions of that instrument which may be said to 
relate to the. protection of personal rights. It is not 
a new feature in any instrument which professes 
to be a fundamental basis of government, although 
our Constitution, of which we are talking, was one 
of the earhest that attempted to institute de 7iovo 
a systematic form of organic government, In 



OF THE UNITED STATES. 59 

the history of the Enghsh race, at all events, prior 
to that time, were charters, concessions from the 
Crown, guaranteeing rights to the citizens; and 
perhaps that was the onlj possible mode in which 
oar ancestors could establish on a broader basis 
their liberties, namely, by demanding from the 
monarchs of the English race concessions, char- 
ters, grants, and privileges. The great Magna 
Charta, about which you have heard so much, as 
probably the most famous paper in English his- 
tory, were concessions exacted from King John, 
w?jo was of a rather arbitrary disposition. This 
was mainly for the purpose of establishing the 
personal rights of his subjects. 

Our Constitution, unlike most modern ones, 
does not contain any formal declaration or bill 
of rights. It has become the custom, and you 
will iind inserted in most of the constitutions of 
the States what is called a bill of rights, intended 
to define and protect the personal rights of the 
citizens, or of the people who are subjected to 
the power of the government; and although there 
is no such formal list in this Constitution, then^e 
is scattered through it, in very irregular shape 
and at ditterent places, some fundamental dec- 
larations of the right of the citizen for protection 
even a2:ainst his own o;overnment, and ao;ainst 



60 LECTURES ON THE CONSTITUTION 

the government wbicli they were then organiz- 
ing; to which I propose calUng your attention 
this evening. For the very reason that they 
were scattered in that irregular manner, it is use- 
ful to have them brought before you in a shape 
that they may be looked at with some system. 

The iirst of these to which I propose to call 
j^our attention, is that which relates to religion. 
The provisions on that subject are only two, and 
they do not go anything like as far as the popu- 
lar idea supposes they do. What is said any- 
where in this Constitution on the subject of relig- 
ion is very limited. The iirst clause that you find 
upon that matter is at the close of the sixth arti- 
cle of the Constitution, and very near \he close 
of the instrument — a very queer place, you would 
think, to find an article of that kind. It relates 
to the oath which the oflicers of the government 
shall take. It is the third clause of the sixth 
article : 

''The Senators and Representatives before mentioned, 
and the members of the several State legislatures, and all 
executive and judicial officers, both of the United States 
and of the several States, shall be bound by oath or affir- 
mation to suppoi't tliis Constitution ; but uo religious test 
shall ever be required as a qualification to any office or 
public trust under the United States." 

Now, you may imagine, with your personal 



OF THE UNITED STATES. 61 

experience and mine, tliat that Avas a very un- 
necessary provision in a Constitution intended for 
this country. Bat you are to remember, at the 
time that Constitution was framed, that very re- 
cently, every man in Xew England who held 
office had, in some way, either by an oath or in 
some form which tested his sincerity, to profess 
to belong to the Protestant religion, and some 
particular form of the Protestant religion. In 
England at that time no man could hold office 
who did not profess his belief in the thirty-nine 
articles of the English Church. And it was only 
in very modern times — I think about 1840 — that 
Roman Catholics w^ere permitted to hold office, 
and only in the last fifteen years that Jews were 
permitted to hold office in Great Britain. So 
you see that this was no imaginary thing, but a 
necessary and proper declaration to be made at 
that time, that under no circumstances should 
any religious test be required as a Cjualitication 
for any public office in the Government of the 
United States. It was an advance. 

That is all that is in the old Constitution as it 
was originally framed; but, as I told you the 
other evening, in the conventions of the States 
which voted upon the ratification of that Consti- 
tution, there was a very general distrust of the 



62 LECTURES ON THE CONSTITUTION 

powers which that instrument conferred as tend- 
ing "to centralization, and a great many States 
proposed amendments in those conventions, 
which were submitted at the first session of 
Congress after that body was oi'ganized, and 
adopted according to the rule which required 
two-thirds of the States to adopt amendments. 
There were then submitted to the vote of the 
States some fifteen amendments, of which twelve 
were adopted. The first of these amendments 
had reference to this subject. Still suspicious of 
the power of the general government, nearly all 
of the amendments submitted at that session of 
Congress were adopted with reference to the re- 
straint upon the powers of the Federal govern- 
ment. The article is as follows : 

''Congress sball make no law respecting an establish- 
ment of j-eligion or proliibiting the free exercise thereof, 
or abridging tlie freedom of speecli or of the press, or the 
i-ight of the people peacefull}^ to assemble, and to petition 
tlie goN'ernment for redress of grievances." 

" Congress shall make no law respecting the 
establishment of religion," and the other provis- 
ion requii'es that there shall be no religious test 
required for officers under the United States 
Government. But there is in this instrument 
no limitation in regard to the State.s establishing 



OF THE UNITED STATES. 63 

iiuy formal religion, or against requiring any re- 
ligious test in the oflieers of the 8tates. Tlie 
whole restriction is upon the Federal govern- 
ment; and, so far as this instrument is con- 
cerned to-daj', contrary to tlie general impres- 
sion, any State can establish Methodism, or 
Episcopalianism, or Unitarianism, or Universal- 
ism, as the religion of the State, to be supported 
by taxes to be levied upon the property of the 
people. I speak of this because it is a general 
opinion that no such thing could be done under 
the Constitution of the United States. There is 
no prohibition on that subject. 

The next fhino; that I call your attention to is 
the writ of habeas corpus. Ever since the charter 
of King John, the writ of habeas corpus has been 
considered as the representative of the English- 
man's right to the security of his personal liberty 
against the private seizure of his wife or children, 
and for any unlawful imprisonment whatever. 
The writ of habeas corpus, so established, was then 
and is now, and perhaps will alwa^'s remain, the 
representative of liberty and the established form 
of maintaining that liberty. It comes from two 
Latin words: habeas, "have" or '^tafee," and cor- 
pus, ''the body"; and it is used in that way be- 
cause the writ commences: "You will have the 



64 LECTURES OX THE COXSTITUTIOX 

body of the prisoner before the court '^ which 
issues it. The writ of habeas corpus was then iu 
existence, and, in the constitutional provision on 
the subject, it is recognized as an existing reme- 
dy. It is not established by the Constitution ; it 
is not created by the instrument ; it is only spoken 
of, like so many other things in this instrument, 
as a known and existing institution; and it is 
for the protection and security of the citizen in 
the use of that writ that the provision on the 
subject is found in this Constitution. It is the 
second chiuse of section nine of the first article 
of the Constitution. After prescribing the pow- 
ers which Congress shall have, and some pro- 
visions about the "migration or importation'' 
of persons, — using that particular, formal phrase 
which the instrument so often does to avoid the 
word ^-slaves": '^the migration or importation 
of such persons as any of the States now existing 
shall think proper to admit, shall not be prohibited 
by the Congress prior to the year 1808; but a 
tax or duty may be imposed on such importation," 
— then the phrase to which I call your attention 
foUow^s : 

"The privileo-e of the ^Y^it of liaheas corjjus shall not be 
suspended, unless when, in cases of rebellion or invasion, 
tlie pi:blic safety ma}^ require it." 



OF THE UNITED STATES. 65 

That is, it shall always be an existing remedy. 
jSTo local authority shall suspend it; it shall not 
be denied for an}' ordinary cause; it shall be a 
remedy to which the poorest citizen may resort 
whenever he is imprisoned or detained forcibly, 
wdth the single exception of cases of rebellion or 
invasion, and even then only when the public 
safety requires it. 

A very important question arose about wdio 
can suspend that v%^rit — a question that has never 
been settlecl yet — which may yet come to be set- 
tled judicially. The President undertook to sus- 
pend it by proclamation, and that proclamation 
was acted on, and a great many people were im- 
prisoned without relief. Habeas corpus was de- 
nied by a great many courts judicially, afterwards, 
on the ground that the President bad suspended 
the writ, but there was a large class of jurists 
and statesmen who held that Congress only could 
suspend it. I do not propose to enter into that 
question; I can only say that President Lincoln 
thought expedient to suspend it, and undoubtedly 
circumstances rendered its suspension necessary 
at that time. But that great writ, which was in- 
tended for the protection of the citizen, shall not 
be suspended, which means shall not be denied^ 



66 LECTURES ON THE CONSTITUTION 

except ill cases of rebellion or invasion, and when 
the public safety requires it. 

The original Constitution contains some other 
matters of this same class, to which I will direct 
3'our attention a few moments. Among them is 
the section witli regard to bills of attainder. That 
is to be found in section ten of the first article of 
the Constitution, just after the one I have been 
speaking of: 

'•Xo bill of attaiiKk'L' or ex post facto law sluiU be 
passed." 

That, of course, is a limitation upon the power 
of Cono^ress. But section i^w savs : 

''IS'o State shall * * * * pass aiiN^ bill of attainder, 
ex post facto la\v, or law impairiiio- tlie obligation of con- 
tracts." 

You see that the makers of the Constitution 
not only declared that Congress should not pass 
any bill of attainder, but they went further, and 
said that no State should do so; and the same is 
true v/ith regard to ex post facto laws. 

These two things, bills of attainder and ex post 
facto laws, are, happily, unknown in this country. 
The provisions of the Constitution forbade them 
both to the States and to the Federal govern- 
ment ninety years ago, and we do not know an}'- 
thing about them in this age and generation. A 



OF THE UNITED STATES. 67 

bill of attainder was a familiar mode in the 
English Parliament of punishing a man by an 
act of Parliament without a formal judicial trial, 
without a jury, without witnesses to be examined, 
if he had offended the sovereign power of the 
country. 

In the frequent rebellions and revolutions that 
they had in that country, the party which, for the 
time being, became dominant punished its ene- 
mies b}' bills of attainder; and a bill of attainder 
was a law which declared that the man or men 
against whom the act was passed had forfeited 
all their rights of property ; often it declared that 
they had forfeited their lives, and that the blood 
of that man and his family was attainted ; so that 
neither could he inherit anything from his ances- 
tors, nor his children inherit anything from him. 
And that is the origin of the word attainder, from 
the old Xorman-French word atteindre. A bill 
of attainder attainted his blood, so that if he es- 
caped with his life, and his father was a noble- 
man, or only a gentleman inheriting large real 
estate, this man could not inherit; and if he had 
children who were innocent, who had taken no 
part in tlie rebellion or quarrel which was the 
cause of it, those children could not inherit from 
him. He is cut off and blasted in his root and 



68 LECTURES ON THE CONSTITUTION 

branch, so that title to no property could go 
through him. And that was called a bill of 
attainder. That was the common mode of pun- 
ishing treason, and also some other crimes. It 
was a frequent addition to the judicial punish- 
rricnt of enormous crimes, such as fratricide, that 
the man should not only be punished by death, 
but that he should be attainted. 

So with regard to ex post facto laws: they were 
law^s of a similar character. It was a question 
in our Supreme Court whether the expression 
ex post facto laws did not relate to all laws passed 
after the fact on which they were intended to 
operate; but the Supreme Court, at a very early 
day, held that it was a form of expression appli- 
cable solely to criminal proceedings, and that a 
law which affected only civil rights might l)e re- 
troactive or retrospective in its effects; but that 
no statute wdiich attempted to regulate criminal 
proceedings could be passed which made that 
which was not an offense at law a criminal offense 
afterwards. iSTo law could be passed after a man 
had committed the act for which he w^as to be 
indicted or charged which should seriously affect 
the rule by which his guilt was to be determined ; 
no new description of offenses which would in- 
clude an act already done if it were not included 



OF THE UNITED STATES. 69 

before; no new evidence which could not have 
been given at the time the act was committed 
can, by a new law, be introduced to aiiect a crim- 
inal proceeding. A great many cases have been 
before the court upon this point, and it is very 
well defined and understood; and the substance 
and essence of it is that no act can be passed, 
either by Congress or a State legislature, which, 
in its retroactive efiect on a crime, or in its effect 
on an act committed before the law was passed, 
can make that criminal which was not criminal 
before, or make that punishable which was not 
punishable before, or in a more severe manner 
than it was punishable before, or make it to be 
ascertained by other and different rules of evi- 
dence than those which existed at the time it was 
committed. 

These, as you will perceive, gentlemen, all be- 
long to a class of provisions intended to secure 
the personal rights of the individual citizen. 

Passing, now, from the original instrument to 
the amendments of which I have already spoken, 
and the first one of which I have read to you, to 
one or two of which I will call joiw attention 
again. •^'Congress shall make no law respecting 
an establishment of religion, or prohibiting the 
free exercise thereof, or abridging the freedom of 



70 LECTURES OX THE CONSTITUTION 

speech or of the press." I suppose you have all 
heard of that ; it is a thing they talk about a good 
deah The press does not say much about their 
abridgment of other people's freedom; but they 
are alwaj's appealing to this provision of the Con- 
stitution in their own behalf This amendment 
is a limitation upon the powers of Congress. For- 
tunately, such has been the regard of Congress 
for the freedom of the press and of speech, such 
has been the popular feeling in this country for 
the right of every man to say and write what he 
pleases, that there has been no attempt on the 
part of Congress, except once in its history, that 
I know of, to infringe this article of the Consti- 
tution, to do anything wliich might be pronounced 
an infringement. During the great contest be- 
tween the Federal party and the anti-Federal 
party, at the close of Mr. John Adams' adminis- 
tration, they passed a law called the alien and 
sedition law — two laws, rather : one w^as the alien 
and the other the sedition law. The sedition law 
did have provisions against the publication of 
articles in the newspapers, or otherwise, calculated 
to stir up sedition among the people; but before 
tliey could come to the courts the Jeffersonian 
regime came into power, and the whole of that 
system of legislation was repealed. It only re- 



OF THE UNITED STATES. 71 

mains as a curiosih- upon our statute-books. Per- 
haps there are some gentlemen in this house old 
enough to remember vrhen our Democratic breth- 
ren used to charge their opponents with being the 
advocates and framers of the ahen and sedition 
laws; but, as much as it was talked about and 
written about, it never became the subject of any 
judicial judgment in this country, that I know of. 
'' Or the right of the people peaceably to assem- 
ble and to petition the government for redress of 
grievances." All those things, fortunately, are 
things which, not only in this country, but in the 
country with which our ancestors were familiar, 
have passed away. The press was fettered in 
England, and the freedom of speech was fettered 
in England, and the right of the people to assem- 
ble was fettered; and in France to-da}^ although 
it is a republic, the censor thinks no more of 
stopping a newspaper for six or eight months 
than a policeman would of arresting a man on 
the streets here. In Louis Napoleon's time, if 
more than three men were found together and 
could not tell what they w^ere talking about, they 
were arrested. Those things w^ere common in 
the days when the Constitution was framed, but 
they have passed away, and we do not realize 
that thev ever were. 



72 LECTURES ON THE CONSTITU HON 

The next article, the third of the amendments, 
is: 

^'Tliat 110 sokliei- sliall, in time of ponce, be quartered 
in any liouse without tlie consent of tlie owner, nor in 
time of war but in a manner to be pivscribed by law.-' 

That is another grievance we do not know in 
this country. K'o man here has seen a soldier 
quartered on a private citizen. But it was the 
habit of the English Government and all govern- 
ments of Europe — the English being the most 
liberal — to have their soldiers in times of peace 
billeted on the citizens. Regiments of soldiers 
would be quartered in York or Liverpool, or in 
Scotland, or some place where it was necessary 
they should be; and instead of paying for their 
support, as we do now, and as all nations do, I 
think, each soldier was billeted on a citizen, — that 
is, boarded and lodged ; and if there was any com- 
pensation, it was irregular and uncertain. There 
was no right on the part of the citizen to refuse. 
They were, perhaps, in some way compensated, 
but they had no right to say: '*^ You shall not put 
a soldier in my house at all." This provision not 
only says it shall not be done at all in time of 
peace without the consent of the owner, but that 
it shall be done in time of war only in a manner 
to be prescribed by law. It contemplates the 



OF THE UNITED STATES. 73 

possible fact that in time of great emergency, in 
time of war, it may be necessary, but even then 
not at the will of the commander, but in a man- 
ner to be prescribed by the general law of the 
land. 

" The right of tlie people to be secure in their 
persons, houses, papers, and effects, against un- 
reasonable searches and seizures, shall not be 
violated." That w^as a grand general proposi- 
tion. Perhaps all the English people would say 
that is the right of all of us anyhow ; but the pro- 
vision goes further, and says : 

'" And no warnints shall issue, but upon probable cause, 
supported by oath or affirmation, and particularity de- 
scribino' tlie place to !)e searched, and the persons or 
tilings to be seized." 

That has been of great utility in this country. 
Formerly, general search-warrants were issued 
by magistrates, courts, and clerks, to ofKcers, to 
search any man's house for anything that might 
be supposed to elucidate and explain crime and 
bring criminals to justice or establish private 
rights; and in addition to this declaration that 
this shall not be done, the article goes on to sa}^ 
in what way it can be done; that is, warrants 
shall issue, tirst, " upon probable cause, supported 
by oath or affirmation, and particularly describ- 
4 



74 LECTURES ON THE CONSTITUTION 

ing the place to be searched, and the persons or 
things to be seized." 

Now comes an article embodying, perliaps, 
more important matter regarding the liberty of 
the citizen than any other in the Constitution, 
until we come to some of those adopted since 
the Rebellion. Article V of the amendments 
declares that 

*'*Xo person shall be held to answer for a capital or 
otherwise infamous crime, unless on a presentment or in- 
dictment of a grand jnry, except in cases arising in the 
land or naval forces, or in tlie militia when in actual 
service, in time of war or public danger ; nor shall an}' 
person be subject for the same often se to be twice put in 
jeopard}^ of life or limb; nor shall be compelled, in any 
criminal case, to be witness against liimself ; nor be de- 
prived of life, liberty, or property without due process of 
law; nor shall private propert}^ be taken for public use 
without Just compensation." 

I read the sixth article in the same connection : 

'' In all criminal prosecutions the accused shall enjoy the 
right to a speed}^ and public trial, b\^ an impartial jur}' of 
tlie State and district wherein the crime shall have been 
committed, which district shall have been previousl}' as- 
certained by law, and to be informed of the nature and 
cause of the accusation ; to be confronted with the wit- 
nesses against him; to have compulsory process for ob- 
taining witnesses in his favor; and to have the assistance 
of counsel for his defense." 

Here is the great bulwark whicli has been 



OF THE UNITED STATES. 75 

thrown up against improper, vindictive, and 
overbearing prosecutions, as a limitation upon 
the powers of the United States; and in the Con- 
stitutions of most of the States similar provisions 
are found. 

"^o person shall be held to answer for a cap- 
ital or otherwise infamous crime, unless on a 
presentment or indictment of a grand jury." 
Here is a distinction between a capital or infa- 
mous crime and those of minor offenses. A 
man might be proceeded against on information 
for defrauding the revenue; for petty offenses of 
an insignificant character; for slander and assault 
and battery ; for a great many things ; but if the 
crime is one which renders him infamous, of 
which the general punishment is sending him 
to the penitentiary, an offense they call felony — 
if he is to be tried for that, he cannot be tried 
except upon indictment by a grand jury. It is 
very doubtful whether that is a wise provision 
now. There are a great many States seeking to 
get rid of it. Instead of a bulwark, it has been 
made a stumbling block. Like the press, like 
religion, like government itself, it is capable of 
perversion; but at the time when these senti- 
ments were delivered, when, in the country from 
which we came, men w^ere prosecuted for the 



76 LECTURES ON THE CONSTITUTION 

sliglitest thing in tlie way of uttering or speaking 
a harsh word against the King, or against the 
King's character, — when they were prosecuted 
without indictment, on information and convicted 
upon presumption, why, it was something to de- 
clare, as the permanent law of this country, that 
no man should be so prosecuted until the grand 
jury inquired into his case and ascertained the 
grounds of the charge against him. There are 
some cases w^hich are exceptions: 

'•Except in cases arising in the land or naval forces, or 
in tlie militia when in actnal service, in time of wai* or 
public dano-er.'' 

The reason of that was that they could not 
stop to try him by jury, and they had to try him 
suddenly and dispose of his case. 

K'ow, another thing : 

•*]S'or shall any person be subject for the same offense 
to be twice put in jeopardy of life and limb." 

That was an old common-law maxim, but was 
thought to be sutticiently important to be put in 
the Constitution. The meaning of it is, that if a 
man is tried, and the jury renders a verdict, he 
can never be tried for that offense again. The 
phrase ^Mife and limb" is an old technical one, 
which is construed to mean the life or liberty of 
himself or the loss of his property. When you 



OF the' united states. 77 

come to practice law, you will find in civil cases 
the same doctrine to be that no man shall be twice 
vexed for the same cause. It means the same 
thing. And the other maxim on which it rests 
is, that it is the interest of the republic that litiga- 
tion shall have an end. So that the principle of 
the common law, of the civil law, and of the 
criminal law is, that w^hen a man has once been 
tried by a competent tribunal and the case is 
ended so as to be beyond appeal or review, the 
charge can never be brought against that man 
again, and he can never dis]3ute the judgment 
again. 

"JSTor shall he be compelled, in any case, to be 
a witness against himself." That was a provision 
necessary in that day. All of you who have 
read Scott's novels, for instance, will remember 
the man wdio was tried for some oftense against 
the Crown — I think some one of those Scotch 
covenanters who were engaged in the rebellion — 
and they w^anted to make him testify against him- 
self and also against his co-conspirators. They 
applied the thumb-screw^ to him, and there were 
various other modes of torture; but Scott tells 
us that the man was brought before Lord Lauder- 
dale, and, after suflering a great deal, his lordship 
said to him: ''Why don't you tell rather than 



78 LECTURES OX THE CONSTITUTION 

sufler so much ? " Said he : " My lord, if I ac- 
cuse any man, you will be the first one that I 
shall accuse under this pressure." ]^ow, that 
thing struck Lauderdale and others engaged in 
the trial so forcibly, that very soon after tor- 
ture was abolished, although the rule continued 
that a man could testify, if he would, against 
himself. But this clause says that no man can 
be compelled to testify against himself in a crim- 
inal case. 

And now comes the other provision : 

*'Xor be deprived of life, liberty, or property without 
due process of law.'' 

To describe what is ^^due process of law" 
might perhaps occupy a whole lecture with a 
great deal of profit. It is a provision that in 
this branch of the Constitution, in these first 
amendments, this fifth amendment was put in 
as a limitation upon the power of Congress. It 
meant that neither Congress, nor the President, 
nor the executive, nor the courts, should deprive 
any man of life, liberty, or property without due 
process of law. In the fourteenth amendment, 
one of the last that has ever been adopted, the 
Constitution has extended that prohibition to the 
States : 
'"No State shall make or enforce any law which shall 



OF THE UNITED STATES. 79 

abrldoe tlie privileges or iiiiiminities of citizens of the 
United States; nor shall any State deprive any person of 
life, liberty, or property without due process of law.'^ 

So that neither Congress nor a State is author- 
ized to deprive any individual of life, liberty, or 
property without due process of law; and it be- 
comes, therefore, very important to know what 
^'' due process of law " is. 

-' Neither the Congress of the United States — to 
its credit be it said — nor the executive, nor the 
<30urts, so far as I know, have hardly ever in any 
instance been charged with attempting to do that 
thing; but the States have not been so temper- 
ate, and they are not so temperate in their legis- 
lation generally as Congress is. Since that pro- 
vision has been the law of the land, since 1867 — 
when, I believe, that amendment was adopted — 
the Federal courts are filled with suits brought 
to vindicate the rights of citizens under that 
•clause of the Constitution ; the parties alleging 
that State laws and State officers, executive, judi- 
•cial, and ministerial, are constantly invading the 
right of life, liberty, and property without regard 
to due process of law; and it has become a very 
grave question what due process of law means. 
rt is so frequently before the courts tliat I do 
Biot dare to give you a definition. It is best that 



80 LECTURES ON THE CONSTITUTION 

the Supreme Court of the United States, the final 
arbiter in such cases, should proceed slowly, and 
declare, as each particular case comes before it, 
whether it is or is not a violation of that provis- 
ion, and whether the proceedings are or are not 
according to due process of law. It is sufficient 
to say that by due process of law^ is meant some 
proceeding according to a recognized course of 
law. In other words, neither Congress nor a 
State can pass a huv declaring that the property 
which belonged to A shall at once be the prop- 
erly of B. They cannot pass a law declaring 
that the United States may seize property and do 
as they please with it; they cannot pass a law 
that a State can do that; they cannot pass a law 
that you can summon a constable and put a writ 
in his hands, and by that means get a title to the 
property that belongs to me. There must be a 
legal mode of proceeding, a judicial mode of pro- 
ceeding, but always a proceeding by a law pre- 
scribing modes by which the rights of the parties 
may b:; determined. That is due process of law ; 
and short of that, it is not due process of law. V 

I perceive, gentlemen, that if I should continue 
this minute way through all of these subdivisions 
I should occupy a longer time than I proposed: 



OF THE UNITED STATES. 81 

There is one other, however, which is quite im- 
portant: 

''ISTor shall private pi'opert.y be taken for public use 
witliout just compeusation.'' 

If the Government of the United States wants 
a piece of property to build a court-house, a 
prison, or a capitol ; wants private property for 
any pubUc purpose, it cannot take that property 
without providing at the same time and by the 
same act for the payment of just compensation. 
Some of the States, copying after this article, 
have gone further, and say without just compen- 
sation first paid or tendered. This provision, as 
it reads here, however, has been construed that 
the State can take the land and pay for it after- 
wards. But the general idea is, that whatever 
law or whatever mode of proceeding is adopted 
to take any private property, land, or personal 
property, for public use, the same law which 
authorizes it to be done must provide the mode 
of assessing its value and compensating the party 
for the property thus taken. This is one of the 
wise provisions of this instrument. 

" In all criminal prosecutions the accused shall 
enjoy the right to a speedy trial, by an impartial 
jury of the State and district wherein the crime 
shall have been committed, which district shall 



82 LECTURES ON THE CONSTITUTION 

have been previously ascertained by law." Now 
notice. He shall have a speedy trial. It shall 
be a jmblic trial, not a star-chamber proceeding, 
with closed doors, to keep the people from seeing 
what is being done. The man who is indicted 
or proceeded against for something which will af- 
fect his reputation, his life, his liberty, or his prop- 
erty, has the right to have the public look on and 
see how^ it is done; that all men may know that 
he gets justice and whether he is imposed upon. 
He is entitled to a speedy trial, not to be kept in 
prison year after year until it suits the pleasure of 
his prosecutor to move. He must have a speedy 
trial, and the courts are authorized, and ought, 
to discharge a man if he is kept in confinement 
longer than is reasonable. It must be a trial by 
an impartial jury. A jury means twelve men of 
the vicinage, and for that reason the amendment 
goes on to saj^ that it shall be " by an impartial 
jury of the State and district wherein the crime 
shall have been committed." These refer to 
trials in the United States court, and but for this 
clause State lines need not be taken into account. 
But you shall not go out of the State; he shall 
have the jury summoned from the State and from 
a district within that State where the crime has 
been committed, arid there he shall be taken and 



OF THE UNITED STATES. 88 

tried where the transaction occurred. This dis- 
trict shall not be changed after the offense is 
committed so as to put him in an unfavorable dis- 
trict. But such district shall have been previously 
ascertained by law or previously fixed by an act 
of Congress, and there he shall be tried. Some 
States in my early days changed the venue by 
an act of the legislature, but that cannot be done 
here. He is to be informed of the nature and 
cause of the accusation ; that is, if he is proceeded 
against by information, a copy shall be furnished 
him, and if by indictment, a copy shall also be 
furnished him. '^He shall be confronted with 
the witnesses against him." If I had the time, 
I could show you how all of these provisions 
are jewels. He shall be confronted with the 
witnesses. You shall not take testimony five 
hundred miles away, but the witnesses shall con- 
front him face to face; he shall look at them 
and have the opportunity of interrogating them 
in court. "To have compulsory process for ob- 
taining witnesses in his favor." The United 
States shall give him a process — a process which 
shall not be disobeyed — a compulsory process 
for the witnesses that he wants. He may be the 
poorest man that ever lived, but if he has wit- 
nesses he has a right to a compulsory process for 



84 LECTURES ON THE CONSTITUTION 

their attendance in the courts of the United 
States, whatever it may be in other courts. *^'And 
to have the assistance of counsel for his defense." 
Now, you think that is quite an easy thing, be- 
cause there are always lawyers enough, and that 
there is no need of having a provision for counsel. 
But up to the year 1836, in the liberal Govern- 
ment of Great Britain, which has prided itself 
upon the protection of the subject, no man in- 
dicted for treason was entitled to counsel at his 
trial; and up to perhaps 1789 or 1798 — at all 
events, at the date of the formation of this Con- 
stitution — no man had a right to the assistance 
of counsel otherwise than that counsel might sit 
by and argue questions of law to the court, but 
had no right to interrogate the witnesses, or make 
speeches to the jury, or anything of that kind; 
and our ancestors saw the evil of that, and said 
that every man shall be entitled to have the 
assistance of counsel in his defense. 

The more you examine that instrument, gen- 
tlemen, especially those portions of it concerning 
these subjects, the more you will see how care- 
fully personal rights have been guarded by it. 
Another of these is, that 

''Excessive bail shall not- be required, nor excessive 
tines imposed, nor ci'iiel and minsnal punishments in- 
flicted." 



OF THE UNITED STATES. 85 

If the otiense for which a man is held for trial 
is one of that character which is bailable at all in 
the courts of the United States, you are to regu- 
late the bail according to his ability to give bail. 
Five or ten thousand dollars, reasonable to a 
man in easy circumstances, would be beyond the 
reach of another man who could give five hun- 
dred or a thousand dollars. That is the meaning 
of that clause; and as to cruel and unusual pun- 
ishment, it means that you shall not cut otf his 
ear, or burn him alive, and all that kind of thing. 

The Constitution stood in that way on the sub- 
ject of personal liberty and the personal rights 
of the citizen until the outbreak of the war of 
the Eebellion. The thirteenth amendment is 
one whose adoption is in the memory" of almost 
every gentleman who is listening to me, and it 
will be one of the most memorable of all the 
amendments to that instrument. It was perhaps 
the most important of all the amendments, not- 
withstanding the great value of those which I 
have commented upon. It reads: 

'' Thiit neither slavery nor involnntaiy sei'vitnde, except 
as a punishment for crime wliereof the party shall have 
been duly convicted, shall exist within the United States, 
or any place subject to their jurisdiction." 

There is a magnificent provision for the per- 



86 LECTURES ON THE CONSTITUTION 

sonal rights of man. There is to be no more 
slavery. Millions of people, by that simple pro- 
vision, were translated Irom a condition of 
slavery equal to that of the most barbarous 
period that the ancient or the modern world has 
ever seen, to a condition of liberty, of manhood, 
of right. This is not the occasion, gentlemen, 
nor have I the time, to comment upon its im- 
portance. 

The next is the fourteenth amendment. I 
have read to you one of its principal provisions. 
I will read them all: 

''AU persons bom or naturalized in tlie United States, 
and subject to the Jurisdiction thereof, are citizens of tlie 
United States, and of tlie State wlierein they reside.*' 

That is the first time in any constitutional pro- 
vision, in any act of Congress, or in any authori- 
tative form, that the word " citizen " was defined. 
You will find it all through the books, the speeches, 
the public discussions of every kind, but it was 
never defined authoritatively until it was defined 
here in this fourteenth amendment. Here you 
have a citizen of the United States and a citizen 
of the State in which a man resides. I cannot 
go into an explanation of that definition, but I 
refer you to the decision of the Supreme Court 
in the Slauditer-house Cases, in 16th Wallace, in 



OF THE UNITED STATES. 5/ 

which you will Und the construction which that 

court has given to these last three amendments. 

After that it says: 

'-'No State sliall raake or enforcii any law which shaU 
abi'idge the privileo'cs or immunities of citizens of the 
United States; nor sliall any State deprive any person of 
life, liberty, or property without due process of law, nor 
deny to any person within its jurisdiction the equal pro- 
tection of the laws." 

Gentlemen, closing wnth that grand sentence, 
that there shall be no denial of the equal protec- 
tion of the laws, permit me the further observa- 
tion that this instrument, some fragmentary re- 
marks on which I have been making to you on 
these three evenings, is an instrument deserving 
as sacred and profound reverence as the sacred 
books of the religions of the w^orld, except the 
Bible. It is an instrument conceived in wisdom 
and forethought, adapted to the organization and 
perpetuity of government — adapted to the security 
of the rights of the citizen, of the individual. It 
is an instrument which has stood the progress of 
almost a hundred years, which has been tested by 
the events of those years, and its forecast and 
wisdom have shone brighter and brighter with 
every test that has been applied to it. It has 
withstood the shock of a war of national defense 
with Great Britain, of a war of conquest against 



^30 LECTURES ON THE CONSTITUTION. 

oar ueighbors, the Mexicans, and of a civil war 
such as never convulsed a nation on the face of 
the globe. In all this it has come out brighter 
and stronger; it has exhibited powers calculated 
for all emergencies; it has shown capacities for 
promoting the welfare of mankind — the happiness 
of the people subject to its dominion. There is 
no subject, gentlemen, to which you can give 
your study and your time, your care and industry, 
that will reward you better, either in your life as 
citizens, in your profession as lawyers, or as states- 
men if you should become public men. There 
is none equal to that instrument of which, in these 
few evenings, I have attempted to say something 
in a very desultory way, and to which I have done 
but very poor justice. And if, gentlemen, j^ou 
have been as much pleased in listening to these 
three discourses as I have been in delivering 
them, I shall have ample compensation for any 
trouble that I have been at. [Applause.] 



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